Court File and Parties
COURT FILE NO.: CV-18-75993 DATE: 2019/07/24
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
LE GROUPE CONSEIL BRONSON CONSULTING INC. and COX & KINGS LTD. Plaintiffs
– and –
ATTORNEY GENERAL OF CANADA Defendant
Counsel: Peter N. Mantas and Christopher McLeod, for the Plaintiffs Alexander Gay, Adrian Johnston, and Andrew Kinoshita, for the Defendant
HEARD: In Writing
Costs Endorsement
Corthorn J.
Introduction
[1] The plaintiffs brought a motion for an order (a) requiring the defendant to provide particulars, (b) a determination as to whether the plaintiffs required an extension of time within which to deliver a reply, and (c) if so, an extension of the deadline by which to do so. The substantive ruling on the motion was released in April 2019: Bronson Consulting Inc. v. Attorney General of Canada, 2019 ONSC 2436.
[2] The defendant was ordered to provide particulars with respect to only one of the 11 items for which particulars were sought. The plaintiffs’ success on the motion for particulars was limited because (a) they chose not to file a supporting affidavit, and (b) many of the particulars requested were found to properly be the subject of the discovery process.
[3] The defendant took a ‘technical’ approach to (a) the timing of the delivery of the demand for particulars upon which the plaintiffs’ motion was based, and (b) the impact of that timing on the plaintiffs’ right to deliver a reply. The defendant argued that the plaintiffs were out of time to serve a demand for particulars and, as a result, were also out of time (and therefore no longer entitled) to deliver a reply.
[4] The defendant’s technical approach to the timing of service of a demand for particulars was rejected. With the defendant having been ordered to provide one particular with respect to the substance of its pleading, the plaintiffs were given a deadline by which to deliver their reply (i.e. following receipt of the particular ordered).
[5] The parties were given an opportunity to resolve the issue of costs of the plaintiffs’ motion. They were unable to resolve that issue. Written submissions were received from the plaintiffs and from the defendant.
Positions of the Parties
a) The Plaintiffs
[6] The plaintiffs describe the success of the parties respectively on the motion as “mixed.”
[7] The plaintiffs highlight that in addition to dealing with the plaintiffs’ motion in January 2019, the court dealt with the defendant’s cross-motion with respect to confidentiality of documents that may be delivered as part of the discovery process. The motion was resolved on consent.
[8] The plaintiffs submit that costs of this motion should be payable in the cause.
[9] The plaintiffs delivered a bill of costs in which they set out separately their costs of their motion and of the defendant’s cross-motion. For the former motion, the plaintiffs’ costs are $15,565 on the partial indemnity scale and $22,050 on the substantial indemnity scale. On the latter motion, the plaintiffs’ costs are $26,345 on the partial indemnity scale and $37,320 on the substantial indemnity scale.
b) The Defendant
[10] The defendant seeks its costs of the plaintiffs’ motion on a partial indemnity scale in the amount of $5,815. The defendant provided limited information in support of the amount claimed for costs. The defendant did not include a bill of costs as part of its costs submissions. The defendant provided the total of each of the actual fees and the disbursements incurred.
[11] The defendant relies on a 60 per cent multiplier when calculating costs on a partial indemnity scale. The defendant points out that the costs claimed are lower than for private parties because of “the reduced fee schedule given the salary rates paid to [Department of Justice] lawyers”.
[12] Understandably, the defendant relies on its success in opposing ten of the 11 items for which particulars were demanded. The defendant describes the one particular ordered as a “small exception” to its success on the balance of the motion with respect to particulars.
Analysis
[13] The action is in its early stages. The two motions heard in January are not the only motions being pursued at this time. Next to be heard are (a) the plaintiffs’ motion to quash three summons issued for the examination of three non-parties, and (b) the defendant’s motion addressing refusals and undertakings given during the examination, to date, of the three non-parties. Those motions are scheduled for July 23 and 24, 2019.
[14] In addition, the defendant intends to proceed with a combined motion for summary judgment and motion to strike a portion of the statement of claim. That motion is expected to be argued over a number of days. It has been adjourned twice to allow the parties to address these various interim matters. The plaintiffs also intend to bring a motion for summary judgment.
[15] For obvious reasons, the action is being case-managed.
[16] In the normal course, it would be appropriate to determine the discrete issue of costs of the plaintiffs’ motion. For a number of reasons, however, it is not appropriate to do so in the circumstances of this action.
[17] First, the parties’ respective success on the plaintiffs’ motion was mixed. On an arithmetic basis, taking into consideration only the number of issues, the defendant achieved a far greater level of success than did the plaintiffs. The plaintiffs were, however, successful in obtaining an order requiring the defendant to provide the particular of the value of the contract for which the plaintiffs alleged they were the successful bidder.
[18] The plaintiffs allege that the contract was worth $867,582.013. The defendant denies that the value of the contract is as alleged by the plaintiffs. The defendant alleges that the contract is valued “for far less”.
[19] No doubt the plaintiffs’ primary claim for damages of $195,000,000 is premised, at least in part, on their belief as to the value of the contact. The damages claimed and/or the damages to which the plaintiffs may be entitled are important factors for the parties and for the court to consider with respect to the principles of proportionality (r. 1.04(1.1)). The potential value of the plaintiffs’ claim will, to some extent, inform the parties’ respective decisions as the litigation progresses.
[20] In their costs submissions the plaintiffs describe the particular ordered as “critical”. I agree with that description. The plaintiffs’ success with respect to a single, but critical, particular may, in the end, be more significant to the course of this litigation than the defendant’s success on the 10 other items for which particulars were requested.
[21] Second, the plaintiffs were forced to bring their motion for particulars because of the defendant’s technical (and flawed) position with respect to restricted timing for delivery of a demand for particulars.
Summary
[22] For the reasons set out above, costs of the plaintiffs’ motion heard on January 24, 2019 shall be payable in the cause. It shall therefore be up to the trial judge to determine both (a) the scale upon which costs of the motion are payable, and (b) the quantum of costs payable.
Madam Justice Sylvia Corthorn
Released: July 24, 2019
COURT FILE NO.: CV-18-75993 DATE: 2019/07/24
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
LE GROUPE CONSEIL BRONSON CONSULTING INC. and COX & KINGS LTD. Plaintiffs
– and –
ATTORNEY GENERAL OF CANADA Defendant
COSTS ENDORSEMENT
Madam Justice Sylvia Corthorn
Released: July 24, 2019